January 31, 2014
By Alfredo Lopez
The federal courts have now destroyed net neutrality as the operative principle on the Internet. Maybe it’s time to take the Internet back from private corporations.
The week before last, the District of Columbia Federal Appeals Court handed down an unsurprising decision that, if applied aggressively, would destroy the Internet as we know it. It concerns the term most of us have heard, but many don’t understand: Net Neutrality.
Net Neutrality is the principle that service providers –the people who actually provide the connections to the Internet, like Verizon and Comcast — can’t discriminate in the delivery of content or provision of access based on user, content, site, platform, application, type of attached equipment, and modes of communication. If you go on-line, you can reach everything anyone else can. It’s been law since 2010, mirroring the growth in popularity of high-speed Internet, and the telecommunications companies have been fighting it ever since.
Essentially, the court’s recent decision ruled that the Federal Communications Commission does not have the standing to enforce Net Neutrality on Internet high-speed (or broadband) providers. So, as of now, there is no Net Neutrality and that has caused a major pushback among media and activists who are alternately frightened, shocked, and downright angry at the court, the corporations and, mainly, the FCC.
But what has gone largely unnoticed or at least uncommented is that the court decision implicitly gives the FCC enhanced power over Internet functioning without any oversight or restraint. In short, they took away our freedom and replaced it with greater government control.
This is the the most serious blow ever to Internet freedom and the political work we do on it. To figure out how we fix this, we need to understand how we got here and that’s a complicated and sometimes apparently self-contradictory lesson in the problems of putting politically-connected, unprincipled operatives in charge of your communications policies. It also demonstrates how huge corporations can push the government around and how a government agency can seem to lose power while actually gaining complete control.
Finally, it makes clear that, if the Internet’s role is to be preserved, access to it must treated as a human right and must be taken over by elected governments or agencies under public oversight. In short, it’s time to de-privatize the Internet and that’s probably the only way a free Internet is going to survive.
The focal point of last week’s court ruling is a 2010 FCC decision that seems straightforward: high-speed Internet service is an information service that must practice Net Neutrality. Under the order, broadband providers must disclose how they manage network traffic, can’t block content or services, and can’t block websites or “unreasonably discriminate” in transmitting information. The 2010 decision followed nearly a decade of hearings, FCC orders thrown out by courts and all kinds of litigation including intense and often bizarre lawsuits pitting well-dressed corporate lawyers representing communications giants like Verizon and Comcast and making court arguments that not even techies can truly understand. It’s never really clear who wins those corporate lawsuit fights because, in the end, both sides manage to claim some kind of victory — so the scoreboard is blank.
The technology world just wanted it all to end and the 2010 decision promised to do just that. But when activists and experts saw the decision language, they cringed. What seemed like a victory for the advocates of Net Neutrality was actually the first step off a legal cliff.
The problem was the definition of broad-band service. There are two types of communications services the FCC oversees and defines. Telecommunications services are the basic technologies like those carried over phone lines; they are “neutral”. For example, you don’t get charged more because the person on the other line is a favorite relative; charges for calls are never based on who receives the call just on where the call is placed. “Information services” are “enhanced” communications technologies like television. Obviously, their content is for sale and, if you want a particular content package (movie channels, for example) you have to pay extra for them.
For some time, FCC policy on the Internet was pretty simple: the technology ran over phone lines and so could be classifed a telecommunications service and so neutrality was built-in. But, during the first decade of this century, the FCC was forced to revisit this issue because the Internet was radically changing: while Internet service had traditionally been carried by phone cables, the faster broadband service was now also being carried by cable TV companies over cable wires. That isn’t subject to Net Neutrality rules.
Since 2002, when this issue first was discussed by the FCC, the phone companies (like Verizon) have argued that their broadband shouldn’t be treated as telecommunications services because cable outfits like Comcast don’t get that restrictive treatment. They’re treated like cable television. The version on the Web would be, if you want to reach certain websites (probably the most popular entertainment sites for starters), you have to pay a higher price for your service.
The two types of companies have spent the entire last decade suing each other, and the FCC, over various FCC attempts to address this disparity. The last attempt, the 2010 order, tried to quiet the storm by acknowledging that they are all (including the phone company high-speed service) “information services” — a capitulation to the powerful cable tv lobby. But, said that 2010 ruling, they have to follow rules of Net Neutrality anyway. That was absurd, everyone knew it, and the court has now said so.
In his ruling, Judge David Tatel (one of the federal court’s experts on this issue) actually implied that he agreed with Net Neutrality but that it didn’t apply to “information services”. In short, he ruled, the FCC shouldn’t apply the “information provider” title to any broadband if it wants to preserve Net Neutrality.
The response was predictable from some circles. Free Press, a leader in this fight, protested loudly and vigorously, even saying that Net Neutrality is dead (“for now”). Other “free Internet” activists and advocates followed suit. The Internet’s progressive technology blog lit up in the Internet’s version of spontaneous combustion.
Surprisingly, FCC Chairperson Tom Wheeler actually hailed the decision saying that the Commission now has greater authoritative power over the Internet. Or maybe that Wheeler reaction shouldn’t have been so surprising because the FCC has actually emerged much stronger from this “loss”.
What exactly does this decision do? It gives a profit source to service providers like Verizon or Comcast… the people who hook you up to the Internet itself and not the ones who host and serve your email or website. The decision allows them to “sell” you access to particular websites and content by charging you more to reach them or to charge the owners of those sites to provide greater access to them. Or both — probably both for more popular sites (as they do with cable television).
In fact, under this decision, the providers can now increase the speed of access to certain websites (the ones that are “pay sites”) and comparatively decrease the speed of (or even block) access to the rest. By all accounts, that is exactly what the companies are planning to do. “Verizon lawyer Helgi Walker made the company’s intentions all too clear, saying the company wants to prioritize those websites and services that are willing to shell out for better access,” according to a Free Press report on a September 2013 hearing. “She also admitted that the company would like to block online content from those companies or individuals that don’t pay Verizon’s tolls.”
To speculate on what that will mean for most content offers on the Internet, including many progressive and information websites, is to wade through a marsh of nightmares.
In the largest sense, the ruling represents the destruction of the Internet as it was originally intended. It was developed for precisely the opposite reason: to provide people with the ability to communicate with each other, share information, talk about anything they want and research everything they want… without discrimination based on wealth, nationality, or race. It was a place for everyone as none other than Pope Francis recently pointed out when he called the Internet “a gift from God”. Under this ruling, it no longer will be.
Wired Magazine was quick to point out another problem most pundits were ignoring. This decision tears apart one of the few vehicles for learning available to poor people. In fact, the Internet (partly through cell-phone technology) has become one of the principle vehicles of communication for people of color and poor people in this country. Even those without computers can go to the library and log on — as they do by droves here in my neighborhood, Sunset Park, Brooklyn, where the average income is in the bottom third of the nation’s and the local library is packed every minute it’s open.
We don’t often think about the importance the Internet has for poor people but it is, in many communities, the only source of vital information. This decision threatens to end that because no company is going to provide resources to people when they can make money cutting them off.
The impact on progressive and community organizing will be harsh; that’s practically guaranteed. The absence of Net Neutrality will cut people off from many sources of politically critical (and vital) information because organizations of the Left who have websites can’t afford to pay all these companies so people can visit them and many people using the Internet aren’t going to pay just to visit movement websites. This will most deeply affect “more casual” users: activists, for example, who log on for an hour a day to get email and maybe browse a news site and then do a bit of specific research they need in their work. This is a group the Internet was designed to address because it doesn’t require fees or subscriptions to get to specific content. You log on and do what you want as long as you want to. That will no longer be possible.
While activists are calling on the FCC to redefine Internet access as a telecommunications service and apply neutrality rules to it, the response from FCC Chairman Wheeler indicates that the Commission may be more than reluctant to take that step.
If it did, there would certainly be a strong push-back from the cable industry association National Cable & Telecommunications Association whose President, former FCC chair Michael Powell, has promised a fight similar to “World War III” if the FCC were to make such a reclassification. The Commission doesn’t want that kind of fight against one of this country’s most powerful trade associations. In fact, it may not want this fight at all.
It’s not clear that the FCC believes in Net Neutrality; nothing it has done would indicate a firm commitment to that principle. At the same time, the court ruling affirms enormous FCC power, allowing it regulate Internet use and traffic in just about any way short of net neutrality — pricing, distribution, even content — provided that it does so pursuing “fairness and public good”. Of course, under the ruling, it gets to decide what “public good” is. So the court took away the power to impose net neutrality but it gave the FCC unprecedented powers over everything else. How will it use those powers? No one knows and Wheeler isn’t saying but depending on a government agency’s good will and wisdom has historically proven dangerous.
One issue not being seen in mainstream commentary is an issue raised by some progressive information activists and community organizers. If Internet access is a human right, dumping Net Neutrality is a violation of it. As the communications corporations see it, that principle isn’t profitable. So, if it is to be exercised as a human right, it must be taken out of the hands of corporations. This is actually more feasible than it might sound.
Many municipalities across the country have begun experimenting with public broadband systems using wifi (or wireless Internet) technologies. When fully implemented across a city or town, everyone living or working there has automatic, high-speed Internet access at absolutely no cost. Net Neutrality is guaranteed because discrimination in public utility policies is illegal in this country.
There are several municipalities that might undertake implementation right now. Jackson, Mississippi, where veteran movement leader Chockwe Lumumba has been elected Mayor, is certainly one. My hometown, New York City, just elected Bill DeBlasio who ran a campaign on his progressive credentials and policies. A city-wide Internet system would be quite a model for the rest of the country. Seattle, Boston, Washington DC? What about the smaller “forward looking” town/cities like the Hoboken or Jersey City in New Jersey?
There are scores if not hundreds of municipalities in this country whose governments might be willing to take this project on.
Is it possible? The technology is there using “mesh” systems that are already developed and could be quickly expanded and perfected. Would every municipality support it politically and be able to afford it? If it were mandated by the FCC (which now has the power to do that) and at least partially supported through federal funds (and there are plenty of those if Washington deems it a priority), it’s tough to envision many cities and towns resisting. In any case, that’s a fight we should be willing to undertake.
Once the implementation of that right is established, rural communities (where wireless Internet might be more difficult) could then be wired for Internet to comply with the FCC’s fairness rules.
Of course, we should fight for FCC changes in the service classification and pressure to turn back this Net Neutrality ruling. But taking advantage of this moment to fight for the de-privatization of the Internet would be a wonderful way to underscore Internet access’s status as a human right, demand that government do what it’s created to do and reclaim the Internet as the technology the human race has created and expanded. That’s worth the effort.
Alfredo Lopez is a member of the This Can’t Be Happening on-line publication collective where he covers technology and Co-Chair of the Leadership Committee of May First/People Link.